Seraj Ansari And 3 Others v. State Of Bihar — 1999 DIGILAW 973 (PAT)

Judgment R.A.Sharma, J. 1. The appellants in these four appeals have challenged their conviction and sentence to life imprisonment passed by the different sessions courts in four different cases (STs). Their prayer for bail at the time of admission of these appeals having been rejected by this Court, in some of the cases more than once, they have moved fresh petitions seeking bail during the pendency of their appeals in this Court. 2. As such petitions seeking bail are frequently made by those whose prayer for bail during the pendency of their appeals has been rejected earlier and they are opposed on the ground that such prayer should be granted after expiry of about five years in jail custody of the appellants, we decided to hear these petitions together so as to enable the learned Counsel for the parties to argue the matter at length. 3. We have heard Mr. P.S.Dayal, learned Senior Counsel, Mr. T.R.Bajaj and other learned Counsel for the appellants and Mr. I.N. Gupta, learned Counsel for the State at length on the applications for grant of bail during the pendency of these appeals. 4. The apex Court has considered and decided this question in more than one case. In Kashmira Singh V/s. State of Punjab, AIR 1977 SC 2147 , the apex Court held that the practice of not releasing the convicts who have been sentenced to life imprisonment on bail was evolved in the past by the courts on the basis that once a person has been found guilty he should not be allowed to go free so long as his conviction is not set aside but the underlying idea of this practice was that the appeal of such a person would be decided within a short time, but if the Court is not in a position to decide the appeal of such a convict expeditiously, the appellant should be released on bail except in exceptional cases for cogent reasons. The paragraph No. 2 of the judgment in the above case being relevant is reproduced below : "2. The appellant contends in this application that pending the hearing of the appeal he should be released on bail. The paragraph No. 2 of the judgment in the above case being relevant is reproduced below : "2. The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified ? Would it be just at all for the Court to tell a person : "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent ?" What confidence would such administration of justice inspire in the mind of the public ? It may quite conceivably happen and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal ? Would it not be an affront to his sense of justice ? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate of major part of it ? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence." 5. In Babu Singh and others V/s. State of Uttar Pradesh, AIR 1978 SC 527 , the same question was decided by the apex Court holding as follows : "23. The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions. Heavy bail from poor man is obviously wrong. Poverty is societys malady and sympathy, not sternness, is the judicial response." While holding as above, the apex Court has relied on Article 21 of the Constitution and its earlier decision in Kashmira Singh V/s. State of Punjab, AIR 1977 SC 2147 (supra). 6 In Anurag Baitha V/s. State of Bihar, 1987 East Cr C 453 (FB) (Pat), the Full Bench of this Court, relying on the law laid down by the apex Court has reiterated the same view holding as under : "15. To recapitulate briefly it seems well settled within this jurisdiction that the constitutional right of speedy trial includes within its sweep the expeditious hearing of substantive appeals against conviction as well. Article 21 does not stop short at the end of the trial but continues to extend its protective shield even after the post conviction stage. To recapitulate briefly it seems well settled within this jurisdiction that the constitutional right of speedy trial includes within its sweep the expeditious hearing of substantive appeals against conviction as well. Article 21 does not stop short at the end of the trial but continues to extend its protective shield even after the post conviction stage. Equally, it has to be borne in mind that in the event of later acquittal by the appellate Court the long incarceration in jail during the pendency of the appeals is inherently in compensatable in terms of money. In any case, it is a virtually legal impossibility to secure monetary damages against the State for wrongful or false imprisonment in such cases. Added to this is the fact that both for undertrials, and for unconvicts, in jails within the State, the conditions are admittedly sub-human. All these are poignantly prominent factors to which one cannot possibly turn the proverbial Nelsons blind eye or to gloss over them as something either inevitable or insoluble. Indeed these considerations become even more relevant where prolonged detentions are by the law agencys own default either by way of inordinately delayed trials extending over years, or in the appellate forum by the High Courts own inability to dispose of even substantive criminal appeals in capital cases expeditiously. These are factors which directly and pristinely enter into consideration and more so in the context of now a constitutional right to speedy trial nor the purpose of grant of bail during the pendency of substantive appeal." "There is thus no option but to hold that the issue of delay occasioned by the High Courts own inability to hear the substantive appeals expeditiously enters directly and materially for consideration in the grant of bail to the convicts. This is a factor independent or to de hors the individual merits of each case." Having observed as above, the Full Bench has further held as follows : "19. This really seems to be the more so in the expanded concept of liberty under Article 21 and the now universally accepted right of a speedy public trial thereunder. This is a factor independent or to de hors the individual merits of each case." Having observed as above, the Full Bench has further held as follows : "19. This really seems to be the more so in the expanded concept of liberty under Article 21 and the now universally accepted right of a speedy public trial thereunder. Recasting the words of their Lordships above, if the High Court is not in a position to hear the appeal of an accused within a reasonable period of time, it must ordinarily unless there are cogent grounds for acting otherwise release the accused on bail in cases of substantive appeals on capital charges pending before it." 7. What is the reasonable period of time within which such appeal should be heard and decided was considered by the Full Bench in paragraph Nos. 20 to 29 of the judgment holding that the appeal against the conviction including the appeal in which sentence to life imprisonment is challenged should be adjudicated upon within a period of one year. In this regard, paragraph No. 29 of the judgment is reproduced below : "29. However, the cases of convicts to whom the primal role in the capital crime is attributed and are held guilty on the substantive charge of murder or other capital offences are undoubtedly on a somewhat different footing and the same concession may not be extended to them in routine. However, it seems equally impossible that having gone through the mill of a trial extending over two to five years, they should still be denied bail and continue in further incarceration for three or four years awaiting the hearing of the appeal. Even in their cases after the period of one year of the pendency of the appeal the issue would have to be considered on the basic ground of delay in the light of the inability of the Court itself to hear and dispose of the appeal. Even in their cases after the period of one year of the pendency of the appeal the issue would have to be considered on the basic ground of delay in the light of the inability of the Court itself to hear and dispose of the appeal. To my mind barring the peculiarly heinous crimes shocking the very conscience of the society and the Court, there will be no alternative but to extend the concession of bail under this class of cases as well if the insistent claim of the convicts for hearing of the appeal cannot be acceded to and their appeals are not adjudicated upon within the reasonable time frame of one year." (Emphasis supplied) In this connection, it may be mentioned that the Full Bench has observed that all crimes for which capital punishment has been prescribed are brutal and are seriously frowned upon by law but there is a difference of degree where such a crime may further be horrendously brutal in its nature and shocking to the conscience of the Society and the Court. The relevant extract in this regard contained in paragraph No. 30 of the judgment is reproduced below : "30....There is no gainsaying the fact that inevitably all crimes which age visited by capital punishment are brutal and the most seriously frowned upon by the law. Nevertheless, even herein there is a difference of great degree where capital crime may further be horrendously brutal in its nature and shocking to the conscience of the Court and society in general. In such a case, there is a social interest involved. Convicts therein would not in my opinion, be ordinarily entitled to such concession of bill once they have been held guilty by the trial Court of such grievous crime." In paragraph Nos. 31 to 35 of the said decision, the Full Bench has given the following illustrations of heinous crimes/horrendously brutal crimes shocking to the conscience of the Court and the society : "Multiple and mass murders on caste and tribal considerations, dacoity coupled with murder, crime against weaker sex, i.e. rape with murder, bride burning or bride murder for extortion of dowry, crime committed by terrorist/militants, sensational crimes like day-light bank robbery, abduction for ransom and indiscriminate use of fire-arms and bombs in murders disturbing public order. 8. 8. In Bhagwan Kama Shinde Gosai and others V/s. State of Gujarat, AIR 1999 SC 1859 , the relevant extract of which is reproduced below, the apex Court has observed that when a convicted person sentenced to a fixed period of sentence files an appeal, suspension of his sentence should be considered by the appellate Court liberally unless there are exceptional circumstances : "3. When a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach." Although the apex Court in the above case has observed that when the sentence is life imprisonment the approach regarding suspension of the sentence may be different. But what should be the approach has not been mentioned. For this purpose, one has to tall back on the earlier decisions of the apex Court in Kashmira Singh V/s. State of Punjab, AIR 1977 SC 2147 (supra); Babu Singh and others V/s. State of Uttar Pradesh, AIR 1978 SC 527 (supra); as well as the decision of the Full Bench of this Court in Anurag Baitha V/s. State or Bihar, 1987 East Cr C 453 (FB) (Pat) (supra). 9. In Abdul Rehman Antulay and others V/s. R.S. Nayak and another, (1992) 1 SCC 225 , the apex Court has reiterated that "right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. 10. In view of the decision of the Full Bench in Anurag Baitha V/s. State of Bihar, 1987 East Cr C 453 (FB) (Pat) (supra), each of the four cases for bail pending appeal has to be considered by the Court and if the crime involved therein is not of the exceptional nature as explained by the Full Bench, the appellant will be entitled to bail if the appeal is not decided within one year. It is well settled that the rejection of the prayer for bail does not preclude the Court from entertaining the similar prayer later on. It is well settled that the rejection of the prayer for bail does not preclude the Court from entertaining the similar prayer later on. In this connection, reference may be made to Babu Singh and others V/s. State of Uttar Pradesh, AIR 1978 SC 527 (supra). We, therefore, consider the bail petitions in each of the four appeals in the light of the law laid down by the Full Bench and the apex Court. Cr. Appeal No. 59 of 1996 (R) 11. This appeal has been filed by four persons who have been convicted and sentenced to life imprisonment under Sections 302/34, IPC by the 6th Addl. Judicial Commissioner, Ranchi, on 7.2.1996 for committing murder of a person with bhala and lathi. They filed this appeal on 2.4.1996, which is still pending. At the time of its admission, their prayer for bail was rejected on 3.4.1996 by this Court. By order dated 19.8.1996 their second petition for bail was also rejected. The third petition for bail which was filed by the appellant Nos. 1 and 2 was rejected on 2.9.1997. The fourth petition for bail filed by appellant Nos. 2 and 3 was also rejected on 19.1.1998. The appellant No. 1, Seraj Ansari has now filed another petition seeking his bail during the pendency of the appeal, in paragraph No. 1 of which it has been stated that he is in custody since 9th February, 1996 i.e. for about three and half years. 12. In view of the facts and circumstances of the case and the law laid down by the apex Court and the Full Bench of this Court in the aforementioned cases, the appellant No. 1, Seraj Ansari is directed to be released on bail on furnishing bail-bond of Rs. 10,000 (ten thousand) with two sureties of the like amount each to the satisfaction of 6th Addl. Judicial Commissioner, Ranchi in S.T. No. 355 of 1992, during the pendency of this appeal. Cr. Appeal No. 80 of 1998 (R) 13. This appeal has been filed by Md. Enamul Haque who has been convicted and sentenced to life imprisonment for committing murder under Sections 302/34, IPC by the 5th Addl. Judicial Commissioner, Ranchi vide judgment dated 4th March, 1998. Cr. Appeal No. 80 of 1998 (R) 13. This appeal has been filed by Md. Enamul Haque who has been convicted and sentenced to life imprisonment for committing murder under Sections 302/34, IPC by the 5th Addl. Judicial Commissioner, Ranchi vide judgment dated 4th March, 1998. While admitting his appeal, this Court on 29.6.1998 rejected his prayer for bail with the observation that if the appeal is not heard within one year, it will be open to the appellant to apply for bail again. As the appeal has not been heard within the period of one year, he has moved a fresh petition for bail, in paragraph No. 3 of which it has been stated that he has been in jail custody for more than 8 years, i.e. from December 1990 to 1st August, 1997 and from 19.1.1998 till date. Normally, if a convict has remained in jail custody for such a long period and there is no likelihood of his appeal being decided in near future, he is entitled to be released on bail pending appeal. 14. But in the instant case, for the reasons given below it is not desirable and proper to release the appellant on bail. In this case, the murder was committed by throwing bomb at the deceased in public place causing panic and fear. That apart the judgment impugned in this appeal shows that the appellant on 16.1.1996 escaped from the police custody from the Civil Court premises after the prosecution has concluded its evidence. Accordingly, his case was separated from the co-accused who was convicted by the 5th Addl. Judicial Commissioner, Ranchi vide judgment dated 21.8.1996. As the appellant escaped from the police custody from the Civil Court premises, his trial could not be continued till he was re-arrested. This caused considerable delay, on account of which the judgment convicting the appellant could be passed only on 4th March, 1998. 15. While considering the petition for bail in an appeal filed against the order of conviction and sentence to life imprisonment one of the relevant considerations is whether the appellant, if released on bail, will surrender at the stage of judgment if it goes against him. The criminal record of the convict is thus a relevant consideration while considering his prayer for bail. The criminal record of the convict is thus a relevant consideration while considering his prayer for bail. In the instant case, in view of the past conduct of the appellant, it is not possible to presume that the appellant will surrender if the appeal is decided against him. That apart, for the delay in session trial the appellant is himself primarily responsible. Moreover, the crime of killing the deceased by explosion of bomb is of heinous nature creating panic in the public place. Under the circumstances, his prayer for bail is rejected. 16. However, the appellant is entitled to early hearing of the appeal. In view of the fact that he has been in jail custody for about 8 years, we direct the Registry to prepare the paper-books of his appeal as also of the connected appeal being Cr. Appeal No. 187/99 (R), filed by co-accused Md. Shakib, within a period of two months from today. These appeals will thereafter be listed for final hearing before the appropriate bench in the last week of November 1999, as first case, subject to part heard. The learned counsel for the appellants will have the liberty to make a mention before the bench before which these appeals are listed for expeditious hearing. If there is delay in hearing and deciding his appeal, it will be open to the appellant to move fresh application for bail. Cr. Appeal No. 166 of 1998 (R) 17. The appellant in this appeal has been convicted and sentenced to life imprisonment under Section 302, IPC for committing murder of his wife. He has also been convicted and sentenced to three years R.I. under Sections 25 and 27 of the Arms Act. All the sentences have been directed to run concurrently. 18. At the time of admission of this appeal on 26.8.1998, his prayer for bail was rejected with the observations that "if the appeal is not listed for hearing within a year, it will be open to the appellant to move this Court for bail again". As the appeal has not been listed for hearing within one year, he has moved fresh petition for bail. 19. In paragraph No. 9 of the memo of appeal, it has been stated that the appellant is in jail custody from 15th July, 1996 i.e. more than 3 years. As the appeal has not been listed for hearing within one year, he has moved fresh petition for bail. 19. In paragraph No. 9 of the memo of appeal, it has been stated that the appellant is in jail custody from 15th July, 1996 i.e. more than 3 years. The Sessions Court has convicted the appellant and sentenced him to life imprisonment for murdering his wife with fire-arm. The crime allegedly committed by him is thus of heinous nature and, therefore, it is not desirable to grant bail to him. His prayer for bail is accordingly rejected. As the appellant is in jail custody for more than 3 years, it is expedient that his appeal should be heard at the earliest. While rejecting the prayer for bail of the appellant, we direct the Registry to prepare the paper-books of this appeal within three months and to list it for final hearing in the first week of January 2000. The learned Counsel for the appellant will have the liberty to make a mention before the bench concerned before which the appeal is listed for taking it out of turn. Cr. Appeal No. 178 of 1998 (R) 20. The two appellants in this appeal along with four other persons who have filed the connected Cr. Appeal No. 154/98 (R) have been convicted and sentenced to life imprisonment under Sections 302/34, IPC for committing murder by the 4th Addl. Sessions Judge, Palamau at Daltanganj, vide judgment dated 6.6.1998. While admitting the appellants appeal on 6.11.1998, their prayer for bail was rejected with the direction to the Registry to prepare the paper-books of both the appeals as expeditiously as possible. The appellants were also given liberty to make fresh application for bail if their appeal is not heard by July 1999. As the appeal has not been heard by July 1999 and the paper-books of the appeals have also not been prepared by the Registry so far the appellants have moved fresh application for bail. 21. The appellants were also given liberty to make fresh application for bail if their appeal is not heard by July 1999. As the appeal has not been heard by July 1999 and the paper-books of the appeals have also not been prepared by the Registry so far the appellants have moved fresh application for bail. 21. As the appellants are in jail custody for more than one year and the paper-book of their appeals have not been prepared so far inspite of the order passed by this Court to that effect on 6.11.1998, there does not appear to be any probability of hearing this appeal at an early date and the crime attributed to them is not of exceptional nature as explained by the Full Bench of this Court in Anurag Baitha V/s. State of Bihar, 1987 East Cr C 453 (Pat) (FB), they are entitled to be released on bail. Both the appellants, namely, Uday Singh and Raj Baran Singh are accordingly directed to be released on bail on furnishing bail bond of Rs. 10,000 (ten thousand) each with two sureties of the like amount each to the satisfaction of 4th Addl. Sessions Judge, Palamau at Daltanganj in S.T No. 35/96, during the pendency of this appeal. 22. Before parting with these cases, a clarification is necessary. My learned Brother (Hon ble A.K. Prasad, J.) in his order has observed that he is unable to pursuade himself to agree with my view that normally when appeal is not taken up for hearing after a period of one year the convict/appellant should be released on bail. That is not my view. That is a view of the Full Bench of this Court in Anurag Baitha V/s. State of Bihar, 1987 East Cr C 453 (Pat) (FB) (supra), the relevant extracts from which have already been reproduced in extenso in the earlier part of this order. However, to make the point clear, I reproduce hereinbelow again that part of the extract of the Full Bench which deals with the appeals filed against sentence to life imprisonment. However, to make the point clear, I reproduce hereinbelow again that part of the extract of the Full Bench which deals with the appeals filed against sentence to life imprisonment. "To my mind barring the peculiarly heinous crimes shocking the very conscience of the society and the Court, there will be no alternative but to extend the concession of bail under this class of cases as well if the insistent claim of the convicts for hearing of the appeal cannot be acceded to and their appeals are not adjudicated upon within the reasonable time frame of one year." 23. However, my learned Brother has not cited or referred to the aforementioned Full Bench decision in his order. 24. It may also be mentioned that the question decided by the aforementioned Full Bench was neither raised, nor decided in any of the cases mentioned in the order of my learned Brother, excepting Kashmira Singh V/s. State of Bihar, AIR 1977 SC 2147 (supra) and Babu Singh and others V/s. State of Uttar Pradesh, AIR 1978 SC 527 (supra), which were considered by the Full Bench and placing reliance on them it has laid down the law which has been relied upon by me in my order. The decision of Bhagwan Rama Shinde Gosai and others V/s. State of Gujarat, AIR 1999 SC 1859 (supra), also does not deal with an appeal filed against the sentence to life imprisonment, I have dealt with this judgment in paragraph No. 8 of this order. 25. Let a copy of this order be placed in each of these four appeals. 26. 26(1). A.K.Prasad, J.I have read the order of my learned Brother (Hon ble R.A. Sharma, J.). In Bhagwans case (supra), the apex Court has laid down that where a person is convicted and sentenced to fixed period, suspension of sentence can be considered liberally, unless there are exceptional circumstances. But when the sentence is of life imprisonment, the consideration of suspension of sentence could be of a different approach. In Bhagwans case (supra), the apex Court has laid down that where a person is convicted and sentenced to fixed period, suspension of sentence can be considered liberally, unless there are exceptional circumstances. But when the sentence is of life imprisonment, the consideration of suspension of sentence could be of a different approach. In Prithpal Singhal V/s. State of Delhi, (1999) 1 SCC 169 , the appellant was convicted under Sections 302/34 of the Indian Penal Code and sentenced for life imprisonment and as he was aged more than 70 years and had remained in custody for more than seven and half years, in the interest of justice, he was ordered to be released on bail on certain conditions. The workload in the High Court was also taken into account by the apex Court. In Kashmiras case (supra), the appellant was acquitted of the charge under Section 302 of the Indian Penal Code by the trial Court, but was convicted under Section 323 of the Indian Penal Code and sentenced to six months rigorous imprisonment and on appeal, by the State, the High Court set aside the order of acquittal and convicted and sentenced him to life imprisonment and was in jail for about four and half years, and in the circumstances of the case, he was ordered to be released on bail. In Babu Singhs case (supra), the appellants were acquitted by the trial Court of the charge under Section 302 of the Indian Penal Code, but on appeal by the State, they were convicted and sentenced under Section 302 of the Indian Penal Code to life imprisonment. But the State did not press for the custody during the pendency of the appeal and in those circumstances, they were ordered to be released on bail on certain conditions by the apex Court. 26. (2). In a recent decision, rendered by the three Hon ble Judges of the apex Court in Rajdeo Sharma V/s. State of Bihar, JT 1998 (7) SC 1 : 1998 (2) East Cr C 1092 (SC). 26. (2). In a recent decision, rendered by the three Hon ble Judges of the apex Court in Rajdeo Sharma V/s. State of Bihar, JT 1998 (7) SC 1 : 1998 (2) East Cr C 1092 (SC). Their Lordships while considering the right to speedy trial in the context of Article 21 of the Constitution of India, have laid down the principle that in cases where trial is for an offence punishable with the imprisonment for a period, not exceeding seven years and the accused has been in jail for a period of not less than one-half of the maximum period of punishment prescribed for the offence, the trial Court shall release the accused on bail forthwith, on such conditions, as it deems fit. 26(3). In the cases of conviction and sentence of life imprisonment, on Capital charge, many factors are to be taken into consideration, viz. the nature and gravity of the case, the period of detention and the facts and circumstances of the case. 26(4). For the aforesaid reasons, I am unable to persuade myself to agree with the view that normally when appeal is not taken up for hearing, after a period of one year, a convict/appellant should be released on bail. I agree with the order of my learned Brother (Hon ble R.A.Sharma, J.) that in the facts and circumstances of the case, the appellants in Cr. Appeal Nos. 59 of 19% (R) and 178 of 1998 (R) are to be released on bail. Further, I agree with my learned Brother rejecting the prayer of bail of the appellants in Cr. Appeal Nos. 166 of 1998 (R) and 80 of 1998 (R), and for expediting early hearing of Cr. Appeal No. 80 of 1998 (R), with a direction given to the Registry in this regard.